Art. 7. Evidence. ARTICLE VII. EVIDENCE. SUBDIVISION 1. Of the contract .... 2. Of the character and conduct of plaintiff... PAGE. 391 392 3. Of the character and conduct of defendant.. 394 4. Of the mutual attachment of the parties. ... 394 5. Of the social and financial status of defend Declarations of the defendant that he would make a good home for the plaintiff, made at a time and as part of the conversations relied upon as showing the promise, are admissible in connection with other conversations as tending to prove the contract. Button v. McCaulay, 1 Abb. Dec. 282, 5 Abb. Pr. (N. S.) 29, reversing 38 Barb. 413. In Roe v. Doe, 33 St. Rep. 41, 11 N. Y. Supp. 336, it was stated that the fact that the defendant frequently visited plaintiff's house; went with her to entertainments and made her presents, etc., may tend to show that there is an existing intention to marry, where the young man and woman were pure and moral; yet the force of such circumstances is greatly weakened where all the time the parties had been indulging in illicit sexual intercourse. The latter accounts for frequent visits, going to places of entertainment, and is abundant reason for presents far more valuable than were proven in the action. Where the alleged promise is established by the testimony of the plaintiff alone it is not necessary that it should be corroborated by other witnesses. "We do not think it unusual or strange that the engagement was not made in the presence of third parties." In any event the conduct of the parties may corroborate the plaintiff's testimony. Nearing v. Van Fleet, 71 Hun, 137, 54 St. Rep. 308, 24 N. Y. Supp. 531, affirmed in 151 N. Y. 643. Preparations for the wedding, such as making wedding cake, preparing dresses, etc., are facts tending to show the promise and acceptance. Wilcox v. Greene, 23 Barb. 639. Art. 7. Evidence. Mere proof of seduction is not proof of the contract to marry, and the jury cannot be allowed to found a verdict upon the seduction. The plaintiff was bound to prove the contract by a preponderance of evidence. Roe v. Doe, 33 St. Rep. 41, 11 N. Y. Supp. 336. Where the time of the promise of marriage was alleged as being in 1869, and at divers times prior thereto in the years 1868, 1869, it was held that evidence of promises in 1866 was not a material variance, it not appearing that the defendant was misled to his prejudice. Fowler v. Martin, 1 T. & C. 377, affirmed, without opinion, in 56 N. Y. 676. Where it was proved that the uncle and aunt of the plaintiff, in her presence, and without her objection, asked the defendant to marry her, which he refused, and the plaintiff then said: "I don't want your money, I want your word and honor that you promised me," and he answered: "There is no use in talking; I cannot marry you now." Held, that there was evidence enough for the jury as to whether there was a request on the part of the plaintiff that the defendant marry her. Kniffen v. McConnell, 30 N. Y. 285. Where the letters and acts of the plaintiff were of a character likely to result from an improper intimacy, and were of a nature inconsistent with the engagement, and contained no allusion to marriage, the verdict for the plaintiff was held to be against the evidence. Roe v. Doe, 33 St. Rep. 41, 11 N. Y. Supp. 336. SUBDIVISION 2. Of the Character and Conduct of Plaintiff. Evidence of lewd conduct on the part of the plaintiff for the purpose of showing criminal intercourse with other men is not admissible under a general denial. But it seems that such evidence may be received in mitigation of damage. Kniffen v. McConnell, 30 N. Y. 285. Evidence of adultery by the plaintiff in a former marriage, and more than twenty-five years previous to the action, is admissible in mitigation of damages, although no such defense is pleaded. Tompkins v. Wadley, 3 T. & C. 424. But it was held that the trial judge had discretion to limit the inquiries as to the character of the plaintiff within twelve years previous to the time of trial, and that for such inquiry to be unlimited there must be shown Art. 7. Evidence. to exist some connection between the past and present period, or that present character may be inferred fairly from the previous bad character. The defendant may show lewdness and improper conduct on the part of the plaintiff, not only previous to but subsequent to the breach of the contract. The court considers the action as brought not only for compensation for the immediate injury, but also for damages for loss of reputation. But this reputation must necessarily depend upon the general conduct of the parties subsequent as well as previous to the injury complained of. Willard v. Stone, 7 Cow. 22. See also Palmer v. Andrews, 7 Wend. 142. In Willard v. Stone, 7 Cow. 22, it was held that the defendant could not prove that during his absence from the neighborhood he heard rumors and reports that he was supplanted in the plaintiff's affections by another person; nor that her conduct was spoken of with disapproval. If her conduct was improper the defendant should and might have proved the fact, but the plaintiff ought not to suffer from the unfounded calumnies which may have been propagated against her. It is error to prevent a witness from testifying as to whether he ever knew of any person having criminal intercourse with the plaintiff, where the testimony is ruled out upon the ground that the answer would incriminate the witness. The witness is not bound to answer such question so far as it will incriminate himself, but it is duty of the court to apprise him to that effect, and if he sees fit he may waive his privilege. It is not the right or duty of the court to enforce it upon him. Southard v. Rexford, 6 Cow. 254. The unchastity or immorality of the plaintiff may be shown by the defendant. McKee v. Nelson, 4 Cow. 354. The defendant in mitigation of damages may show the lascivious conduct of the plaintiff without reference to the time he made the promise to her or as to the period of the proposed marriage. Johnson v. Caulkins, 1 Johns. Cas. 116. Evidence that the plaintiff drank intoxicating liquors to excess and sometimes got intoxicated is admissible under general denial, not as a defense, but in mitigation of damages. So, too, any misconduct of the plaintiff showing that she would be an unfit companion in married life may be given in mitigation. Nor is the defendant bound to specify that he offered such evidence in miti Art. 7. Evidence. gation; if the evidence is competent for any purpose and is rejected it is error. Button v. McCaulay, 1 Abb. Dec. 282, 5 Abb. Pr. (N. S.) 29, reversing 38 Barb. 413. Evidence of sexual intercourse between the parties may be shown by the plaintiff, even though the complaint fails to allege it. The testimony is relevant as part of the history of the relations between the plaintiff and defendant, and also because the jury may consider such evidence upon the question of damage. Jennette v. Sullivan, 63 Hun, 361, 43 St. Rep. 641, 18 N. Y. Supp. 266. Seduction under promise of marriage may be shown in aggravation of damage. Kniffen v. McConnell, 30 N. Y. 285. The fact that the defendant's promise was made with a view to seducing the plaintiff, and that by means of promises he had so seduced her, may be shown in aggravation of damage. Wells v. Padgett, 8 Barb. 323. It is not error to allow plaintiff to testify that she was pregnant by the defendant prior to his promise to marry. Hotchkins v. Hodge, 38 Barb. 117. SUBDIVISION 3. Of the Character and Conduct of Defendant. Evidence of the defendant's treatment of other women is not admissible unless it is shown that the plaintiff knew thereof, in which case it might be notice to the plaintiff that the defendant's attentions did not indicate an intention to marry her. Crosier v. Craig, 47 Hun, 83. The fact that the failure of the defendant to marry the plaintiff was caused by no want of respect or attachment may be shown in mitigation of damage. Johnson v. Jenkins, 24 N. Y. 254. Where the defendant proved that the plaintiff drank intoxicating liquors to excess and sometimes got intoxicated, it was held that if the plaintiff claimed that the intoxication was connived at by the defendant, the burden of proof was upon her to show it. Button v. McCaulay, 1 Abb. Dec. 282, 5 Abb. Pr. (N. S.) 29, reversing 38 Barb. 413. SUBDIVISION 4. Of the Mutual Attachment of the Parties. In Tompkins v. Wadley, 3 T. & C. 424, it was held that the witness could not testify as to her opinion of the state of the plain Art. 7. Evidence. tiff's affections toward the defendant where she was not shown to have had an intimate acquaintance with the defendant so as to qualify her to give an opinion. The statement in 1 Greenl. Ev., § 440, is criticised "In an action for breach of promise to marry, a person accustomed to observe the mutual deportment of the parties may give in evidence his opinion upon the question whether they were attached to each other." The decision in Tompkins v. Wadley seems to turn upon the fact that the witness was not accustomed to observe the mutual deportment of the parties." A witness who lives with the plaintiff may give his opinion, founded upon observation of her deportment, that she was sincerely attached to the defendant. McKee v. Nelson, 4 Cow. 354. The plaintiff. may testify that she became attached to the de fendant, where his answer alleges that she never had any affection for him and evidence was introduced to sustain such allegation. Chellis v. Chapman, 26 St. Rep. 953, 7 N. Y. Supp. 78. Affirmed, 125 N. Y. 214. Where the complaint alleges mutual love and affection between the parties, and the answer fails to deny such allegation, proof thereof is unnecessary. Finkelstein v. Barnett, 16 Misc. Rep. 488, 38 N. Y. Supp. 961, 74 St. Rep. 551. It is not necessary to show that the contract of marriage ripened into mutual love and affection. It is immaterial whether the defendant was in love with the plaintiff. Getzelson v. Bernstein 15 Misc. Rep. 627, 37 N. Y. Supp. 220, 72 St. Rep. 799; Finkelstein v. Barnett, 17 Misc. Rep. 564, 40 N. Y. Supp. 694. SUBDIVISION 5. Of the Social and Financial Status of Defendant. It is well settled that evidence tending to show the defendant's financial condition is admissible in an action for breach of promise as it tends to show what the plaintiff lost in the way of maintenance, position, and support by the breach of defendant. Held, however, that where the plaintiff was allowed to testify to declarations of the defendant to the effect that he was the only heir of his uncle, who would leave him a large estate, that the evidence was immaterial and a reversible error, as it is impossible to say it did not increase the verdict. Held, also, it was error to allow the plaintiff to testify "I heard that he was a very rich man ;" that this did not tend to show general reputation; it is merely hearsay. It seems, |